(1) Exploration for and development of oil and gas reserves in
this state must coexist with the use, agricultural or otherwise, of
the surface of certain land and that each constitutes a right equal
to the other.

(2) The surface owner of lands on which horizontal wells are
drilled shall be compensated for damages to the surface of the land
pursuant to the provisions of this article.

(b) The Legislature declares that the public policy of this
state shall be that the compensation and damages provided in this
article for surface owners may not be diminished by any provision
in a deed, lease or other contract of conveyance entered into after
December 31, 2011.

(c) It is the purpose of this article to provide
Constitutionally permissible protection and compensation to surface
owners of lands on which horizontal wells are drilled from the
burden resulting from drilling operations commenced after January
1, 2012. This article is to be interpreted in the light of the
legislative intent expressed herein. This article shall be
interpreted to benefit surface owners, regardless of whether the
oil and gas mineral estate was separated from the surface estate
and regardless of who executed the document which gave the oil and
gas developer the right to conduct drilling operations on the land.
Section four of this article shall be interpreted to benefit all
persons.

(d) The provisions of this article apply to any natural gas well, other than a coalbed methane well, drilled using a horizontal
drilling method, and which disturbs three acres or more of surface,
excluding pipelines, gathering lines and roads or uses more than
two hundred ten thousand gallons of water in any thirty-day period.
Article seven of this chapter does not apply to any damages
associated with the drilling of a horizontal well.

WVC 22 - 6 B- 2
§22-6B-2. Definitions.

In this article:

(1) "Drilling operations" means the actual drilling or
redrilling of a horizontal well commenced subsequent to the
effective date of this article, and the related preparation of the
drilling site and access road, which requires entry, upon the
surface estate;

(2) "Horizontal drilling" means a method of drilling a well
for the production of natural gas that is intended to maximize the
length of wellbore that is exposed to the formation and in which
the wellbore is initially vertical but is eventually curved to
become horizontal, or nearly horizontal, to parallel a particular
geologic formation;

(3) "Horizontal well" means any well site, other than a
coalbed methane well, drilled using a horizontal drilling method,
and which disturbs three acres or more of surface, excluding
pipelines, gathering lines and roads, or uses more than two hundred
ten thousand gallons of water in any thirty-day period;

(4) "Oil and gas developer" means the person who secures the
drilling permit required by article six-a of this chapter;

(5) "Person" means any natural person, corporation, firm,
partnership, partnership association, venture, receiver, trustee,
executor, administrator, guardian, fiduciary or other
representative of any kind, and includes any government or any
political subdivision or agency thereof;

(6) "Surface estate" means an estate in or ownership of the
surface of a particular tract of land overlying the oil or gas leasehold being developed; and

(7) "Surface owner" means a person who owns an estate in fee
in the surface of land, either solely or as a co-owner.

(a) The oil and gas developer is obligated to pay the surface
owner compensation for:

(1) Lost income or expenses incurred as a result of being
unable to dedicate land actually occupied by the driller's
operation, or to which access is prevented by the drilling
operation, to the uses to which it was dedicated prior to
commencement of the activity for which a permit was obtained,
measured from the date the operator enters upon the land and
commences drilling operations until the date reclamation is
completed;

(2) The market value of crops, including timber, destroyed,
damaged or prevented from reaching market;

(3) Any damage to a water supply in use prior to the
commencement of the permitted activity;

(4) The cost of repair of personal property up to the value of
replacement by personal property of like age, wear and quality; and

(5) The diminution in value, if any, of the surface lands and
other property after completion of the surface disturbance done
pursuant to the activity for which the permit was issued determined
according to the market value of the actual use made thereof by the
surface owner immediately prior to the commencement of the
permitted activity.

The amount of damages may be determined by any formula
mutually agreeable between the surface owner and the oil and gas
developer.

(b) Any reservation or assignment of the compensation provided in this section apart from the surface estate except to a tenant of
the surface estate is prohibited.

(c) In the case of surface lands owned by more than one person
as tenants in common, joint tenants or other co-ownership, any
claim for compensation under this article shall be for the benefit
of all co-owners. The resolution of a claim for compensation
provided in this article operates as a bar to the assertion of
additional claims under this section arising out of the same
drilling operations.

(a) Nothing in section three or elsewhere in this article
diminishes in any way the common law remedies, including damages,
of a surface owner or any other person against the oil and gas
developer for the unreasonable, negligent or otherwise wrongful
exercise of the contractual right, whether express or implied, to
use the surface of the land for the benefit of the developer's
mineral interest.

(b) An oil and gas developer is entitled to offset
compensation agreed to be paid or awarded to a surface owner under
section three of this article against any damages sought by or
awarded to the surface owner through the assertion of common law
remedies respecting the surface land actually occupied by the same
drilling operation.

(c) An oil and gas developer is entitled to offset damages
agreed to be paid or awarded to a surface owner through the
assertion of common-law remedies against compensation sought by or
awarded to the surface owner under section three of this article
respecting the surface land actually occupied by the same drilling
operation.

WVC 22 - 6 B- 5
§22-6B-5. Notification of claim.

Any surface owner, to receive compensation under section three
of this article, shall notify the oil and gas developer of the
damages sustained by the person within two years after the date
that the oil and gas developer files notice that final reclamation
is commencing under section fourteen, article six-a of this
chapter. The notice of reclamation shall be given to surface
owners by registered or certified mail, return receipt requested,
and is complete upon mailing. If more than three tenants in common
or other co-owners hold interests in the lands, the oil and gas
developer may give the notice to the person described in the
records of the sheriff required to be maintained pursuant to
section eight, article one, chapter eleven-a of this code or
publish in the county in which the well is located or to be located
a Class II legal advertisement as described in section two, article
three, chapter fifty-nine of this code, containing the notice and
information the secretary prescribes by rule.

WVC 22 - 6 B- 6
§22-6B-6. Agreement; offer of settlement.

Unless the parties provide otherwise by written agreement,
within sixty days after the oil and gas developer received the
notification of claim specified in section five of this article,
the oil and gas developer shall either make an offer of settlement
to the surface owner seeking compensation, or reject the claim.
The surface owner may accept or reject any offer so made:
Provided, That the oil and gas developer may make a final offer
within seventy-five days after receiving the notification of claim
specified in section five of this article.

(a) (1) Unless the oil and gas developer has paid the surface
owner a negotiated settlement of compensation within seventy-five
days after the date the notification of claim was mailed under
section five of this article, the surface owner may, within eighty
days after the notification mail date, either (i) Bring an action
for compensation in the circuit court of the county in which the
well is located; or (ii) elect instead, by written notice delivered
by personal service or by certified mail, return receipt requested,
to the designated agent named by the oil and gas developer under
the provisions of section seven, article six-a of this chapter, to
have his, her or its compensation finally determined by binding
arbitration pursuant to article ten, chapter fifty-five of this
code.

(2) Settlement negotiations, offers and counter-offers between
the surface owner and the oil and gas developer are not admissible
as evidence in any arbitration or judicial proceeding authorized
under this article, or in any proceeding resulting from the
assertion of common law remedies.

(b) The compensation to be awarded to the surface owner shall
be determined by a panel of three disinterested arbitrators. The
first arbitrator shall be chosen by the surface owner in the
party's notice of election under this section to the oil and gas
developer; the second arbitrator shall be chosen by the oil and gas
developer within ten days after receipt of the notice of election;
and the third arbitrator shall be chosen jointly by the first two
arbitrators within twenty days thereafter. If they are unable to agree upon the third arbitrator within twenty days, then the two
arbitrators shall immediately submit the matter to the court under
the provisions of section one, article ten, chapter fifty-five of
this code, so that, among other things, the third arbitrator can be
chosen by the judge of the circuit court of the county in which the
surface estate lies.

(c) The following persons are considered interested and may
not be appointed as arbitrators: Any person who is personally
interested in the land on which horizontal drilling is being
performed or has been performed, or in any interest or right
therein, or in the compensation and any damages to be awarded
therefor, or who is related by blood or marriage to any person
having such personal interest, or who stands in the relation of
guardian and ward, master and servant, principal and agent, or
partner, real estate broker, or surety to any person having such
personal interest, or who has enmity against or bias in favor of
any person who has such personal interest or who is the owner of,
or interested in, the land or the oil and gas development of the
land. A person is not considered interested or incompetent to act
as arbitrator by reason of being an inhabitant of the county,
district or municipal corporation in which the land is located, or
holding an interest in any other land therein.

(d) The panel of arbitrators shall hold hearings and take
testimony and receive exhibits necessary to determine the amount of
compensation to be paid to the surface owner. However, no award of
compensation may be made to the surface owner unless the panel of
arbitrators has first viewed the surface estate in question. A transcript of the evidence may be made but is not required.

(e) Each party shall pay the compensation of the party's
arbitrator and one half of the compensation of the third
arbitrator, or each party's own court costs as the case may be.

WVC 22 - 6 B- 8
§22-6B-8. Application of article.

The remedies provided by this article do not preclude any
person from seeking other remedies allowed by law.
Note: WV Code updated with legislation passed through the 2015 Regular Session
The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.